Ummed Singh v. Govind Ballabh Pant Erishi Evans Prodyegic Vishwa Vidyalaya — 1992 DIGILAW 731 (ALL)

JUDGMENT M.L. Bhat, J. - By an order dated 1-7-1986, respondent No. 1 has directed that on the basis of the resolution dated 9-6-1986, the post of General Manager (Food Services) held by the petitioner stands abolished with effect from 30-6-1986. The services of the petitioner were no longer required and were terminated with effect from 30-6-1986 (afternoon) on payment of one month's salary in lieu of one month notice. By another order dated 5-7-1986, the allotment of quarter in favour of the petitioner was revoked with effect from 1-7-1986 and the petitioner was asked to handover the vacant possession of the quarter to the authorities. These two orders are impugned in this writ petition. The facts are brief. 2. The petitioner is said to have been appointed as General Manager (Food Services) on the post created under the U.P. Agricultural University Act. Under Section 26 (2) of the Act a contract of service was entered into between the petitioner and respondent No. 1. The petitioner completed the period of probation and thereafter continued on the post. The petitioner's case is that he made a complaint against one Dr. S.S. Ahuliwalia for his mis-conduct which resulted in his suspension. The said Dr. Ahuliwalia is said to have made request to Dean of Students Welfare of the University to do away with the services of the petitioner by any means. The suspension order is said to have been issued against the petitioner on 4-7-1985. Copy of the suspension order is placed on the record as Annexure 2. No enquiry was held against the petitioner after the issuance of suspension order, nor was any charge framed against him, which, in the opinion of the petitioner, means that there was no material available with the respondents which could be enquired into. The respondents are said to have revoked the suspension order of the petitioner on 30-6-1986. Copy of the same is annexed to the writ petition. Thereafter the impugned order was issued whereby the post held by the petitioner was abolished on 1-7-1986. Copy whereof is contained in Annexure-4 to the writ petition. The petitioner submits that neither the Act nor the Statute authorise respondent No. 1 to abolish the post. Respondent No. 1 has authority to create administrative, ministerial and other necessary posts and to make appointment thereto. Copy whereof is contained in Annexure-4 to the writ petition. The petitioner submits that neither the Act nor the Statute authorise respondent No. 1 to abolish the post. Respondent No. 1 has authority to create administrative, ministerial and other necessary posts and to make appointment thereto. The petitioner's further case is that no sanction was obtained by the respondent No. 1 from the Ministry of Agriculture for abolition of the post. It is contended that services of a permanent employee after confirmation can be terminated only on few grounds which includes abolition of post. This is envisaged under sub-clause (6) of Clause (o) of Para 4 of Chapter 25 of the Statute framed under the Act. 3. It is averted that there are eleven hostels in the University and Mess in each of them was run by the Manager and the petitioner's job was to supervise all the Managers with regard to feeling of students. Posts of Mess Manager (Food Managers) have not been abolished. The petitioner's post is, therefore, required by the University for supervising the Food Managers. The petitioner states that sub-clause (6) of Clause (e) of Para 4 suffers from vice of excessive delegations of power and there is no guide-line for its exercise in Statute and the power of abolition of post is in direct conflict with Section 6 (13) of the Act which provides creation of administrative and ministerial posts and appointment thereto. Handing over of residential quarter is said to be act of victimisation against the petitioner. 4. The impugned order of abolition of post is challenged on various grounds. Such as Statute empowering the respondent No. 1 to abolish the post being contrary to Section 6 (13) of the Act, it is said that uncanclished powers have been given to respondent No. 1 without any guideline under the relevant Statute for abolition of the post. No post has been abolished till date. There is no basis for abolition of the post. It was done only to get rid of the petitioner. The petitioner was kept under suspension in violation of law for one year without enquiry. Ultimately the post held by him was abolished. This action of the University is not above board and mala fides are writ large on record. The petitioner being confirmed, his services could not be dispensed with without proper enquiry. 5. The petitioner was kept under suspension in violation of law for one year without enquiry. Ultimately the post held by him was abolished. This action of the University is not above board and mala fides are writ large on record. The petitioner being confirmed, his services could not be dispensed with without proper enquiry. 5. In his counter-affidavit, respondent No. 1 has stated that the petitioner's appointment on the post was not made on permanent basis. Respondent No. 1 has also denied the petitioner's contention with regard to hi3 services having been confirmed after the period of probation. The petitioner's appointment is said to have taken place as General Manager of a purely temporary basis which is revoked by Annexure-1 to the writ petition. A contract of service was entered between the petitioner and respondent No. 1. Copy whereof is Annexure C.A. 1 to the counter-affidavit. The contract of service shows that the petitioner's appointment was temporary for a period of two years in the first instance. Under Clause 7 of the agreement it was provided that after expiry of the period of two years, the petitioner would be eligible for re-employment on the same job or to some higher position in the light of his work during the period of his probation. The service agreement also envisages one month's notice if the post is required to be terminated. In the case of abolition of post petitioner's services ootid be terminated by one month's notice or one month's pay in lieu thereof. 6. Regulations can be made under the Act. These are enabling regulations for the purposes of carrying out the scheme of the Act and Statute. Board is said to be the Appex body of the University vested with the powers to manage the affairs of the University which includes power to abolish the post or terminate the services of the employees. The petitioner's appointment was not on probation. His services were contractual. 7. It is stated that in 1983 there was an enquiry against the petitioner and a show-cause notice was issued to him for termination of his services. In 1985 some irregularities were found which necessitated the passing of the suspension order. It is stated that the suspension of Dr. Ahuliwalia. the then Dean of Students Welfare has nothing to do with the petitioner's termination. Dr. Ahuliwalia himself was under suspension. In 1985 some irregularities were found which necessitated the passing of the suspension order. It is stated that the suspension of Dr. Ahuliwalia. the then Dean of Students Welfare has nothing to do with the petitioner's termination. Dr. Ahuliwalia himself was under suspension. He could not have any say in respect of the petitioner's case. It is avered that there are 2500 students living in the various hostels of the University. The students were demanding that the management of their Tresses be handed over to them. They had also resorted to agitation in this regard. At one time the University had agreed to the demand made by the students. As a result of this the post of General Manager (Food Services) which had been created to centralise supervision of messes arrangement became more or less redundant. This led to the abolition of the post. The abolish of post has resulted in termination of the petitioner's services. The post is not required by respondent No. 1 for supervising the management of the messes because the super-vision was handed over to the students. Contents of Para 8 of the writ petition are denied. The University is said to be incurring an expenditure of over Rs. 22,000/- annually on the post which expenses are unnecessary because the job entrusted to the petitioner had become superfluous. The members of the board had no ill will against the petitioner. No motive or bad faith can be attributed to them for exercising the power of abolition of the post. Respondent No. 1 is not required to obtain sanction from the Agricultural Ministry for abolition of the post. It is stated that abolition of post is rare but as and when it was needed the University had passed such orders. 8. In the rejoinder-affidavit filed by the petitioner, it is submitted that his duties were prescribed as per Regulation No. 86 and vide order dated 12-1-1980. His job was supervisory in nature and was meant for continued existence. It is stated that statutes do not constitute any temporary appointment and as such the appointment of the petitioner to the post which was existing and likely to be continued was on probation and after completion of probation the petitioner stood automatically confirmed. No notice was served on the petitioner for abolition of post which makes the impugned order violative of principles of natural justice. No notice was served on the petitioner for abolition of post which makes the impugned order violative of principles of natural justice. The petitioner's post could not be abolished during the period of bis suspension which shows that the impugned order is not made in good faith. It is stated that inmates of all the hostels have been running food services in their respective hostels under Regulation 38 to 61 right from the Academic Sessions 1962-63 and the post of General Manager (Food Services) was created for the first time in the Academia Session 1964-65 and he was assigned duties under the Regulation. It is denied that students had made any demand for managing their messes in the hostels. The contents of minutes of the Board's meeting dated 9-6-1986 are denied. It is stated that no opportunity was given to the petitioner to put up his case before the Board. 9. At the interim stage the petitioner was granted ad-interim stay by this Court in the following terms : - "With regard to the interim order we are of the opinion that option should be left to the University either to appoint the petitioner in comparable post or pay half of the salary during pendency of the writ petition. This should be in addition to the petitioner's entitlement of full salary for the period during which he was under suspension. The said payment shall be made within ten days, from the date a copy of this order is served on the opposite party. Option given to the University shall be exercised within the same period also." 10. Respondent No. 1 seems to have filed S. L. P. against the interim order dated 1-12-1986, The S. L. P. was not admitted by the Supreme Court and it was left to the High Court to dispose of the writ petition at an early date. 11. We have heard learned counsel for the parties at some length. Learned counsel tor the petitioner argued that the impugned order was passed in bad faith and it was colourable exercise of power by the respondents. Mr. Kakkar appearing for the other side submits that abolition of post was due to certain exigency and it has not cast stigma to the petitioner. The Board of Management being the Appex body has competence to abolish the post or to create any post. Mr. Kakkar appearing for the other side submits that abolition of post was due to certain exigency and it has not cast stigma to the petitioner. The Board of Management being the Appex body has competence to abolish the post or to create any post. Even under Section 6 (13) of the Act, the Board's power to abolish the post is implicit. Our attention was drawn to the statute framed under the Act. Chapter XXV deals with the conditions of service, appointment, suspension, removal and control of employees. Clause 4 (e) lays down that after confirmation, the services of an employee of the University can be terminated on the following grounds : (1)................ (2)............ (3) .......... (4) ........... (5) ........... (6) Abolition of post 12. F om the reading of the statute it appears that even after confirmation, services of an employee of the University can be terminated amongst other grounds on the ground of abolition of post. 13. Section 2 (c) defines Board' as the Board of Management of the University which means that the Board is an apex body of the University. The powers of the University are provided under Section 6 of the Act. Amongst other powers, thus University has a power to create administrative, ministerial and other necessary posts and to make appointments thereto. The power to abolish the post is implicit in the power to create administrative, ministerial and other posts. If an authority is competent to create a post, it is also competent to abolish a pest. It is now well settled that if an authority has power to do a thing, its power to undo that thing is implicit. 14. From the scheme of the Act and statute we are convinced that respondent No. 1 has power to create post of General Manager and has authority to abolish the post provided abolition of post is done in good faith. The regulations only regulate do function of General Manager. The Regulations do not deal with the creation or abolition of the post. The regulations framed under the Act and the statute prescribe the function of the General Manager. His functions are given in Regulation 86. 15. The regulations only regulate do function of General Manager. The Regulations do not deal with the creation or abolition of the post. The regulations framed under the Act and the statute prescribe the function of the General Manager. His functions are given in Regulation 86. 15. It was urged by learned counsel for the petitioner that the petitioner was placed under suspension for a period of one year and his suspension was revoked without any charge or enquiry and thereafter the post held by the petitioner was abolished. This, in the opinion of learned counsel for the petitioner, would mean that in order to get rid of the petitioner the post was abolished. Therefore, no enquiry was held against the petitioner as there was no material available against him for being removed from the service. 16. The petitioner's services are terminated by abolishing the post after giving him one month's notice, That decision was taken on 9-6-1986 in a resolution by the Board. The reinstatement of the petitioner seems to have been made for some purpose. Under the statute the petitioner was to be given one month's pay in lieu of one month's notice before his services were terminated. During the period of his suspension he was getting only fifty per cent of pay as suspension allowance. If he was not reinstated he could not be paid full pay for one month in lieu of notice for termination. Therefore, with a view to paying one month's pay to the petitioner in lieu of notice for termination, it was necessary for the respondents to reinstate him. His termination of service by abolition of post would have become bad if he was not paid one month's pay in lieu of notice of termination of his services. Therefore, if any decision was taken during the petitioner's period of suspension, for abolishing the post or for reinstating the petitioner first, that has to be seen in the context of the provisions of the Act and Statute framed thereunder. The petitioner's reinstatement seems to have enabled respondent No. 1 to exercise the power of abolition of post and terminate the petitioner's services by paying him one month's pay in lieu of one month's notice as was required to be done under the statute. No bad faith can be inferred from the resolution dated 9-6-1986 by which the petitioner's reinstatement was resolved. No bad faith can be inferred from the resolution dated 9-6-1986 by which the petitioner's reinstatement was resolved. The impugned order does not become bad because the petitioner was to be reinstated by the resolution dated 9-6-1986 Any allegation of mala fide attributed to respondent No. 1 on this ground seems to be far fetched and imaginary. 17. The counsel for petitioner has not pleaded mala fide against any of the members of the Board, nor is there any factual basis laid down in the writ petition about the action of respondent No. 1 having been taken in bad faith He has referred to extract of the resolution dated 9-6-1986 by which it was decided to abolish the post held by the petitioner and to create a post of Lekhadhifcari (Accountant). It seems that by the resolution it was decided to create a post of Accountant whose functions are prescribed under Regulation No.77 of the amended emulation's framed in November, 1987. It is contended by learned counsel for the petitioner that functions of the Accountant and Senior Accountant are similar to those which were prescribed for General Manager (Food Services) by old Regulation No. 86. Only a few functions under sub-clause (9) (h) and (j) are omitted in the Regulation 86. All other functions prescribed in Regulation 86 are given to Accountant and Se nor Accountant. This according to learned counsel for the petitioner would mean that there was a need for the post of General Manager Which was abolished in colourable exercise of power and his functions were now to be discharged by the Accountant which post is also newly created. Had the post of General Manager not been abolished there was no necessity to Create a new post of Accountant. 18. What was the logic behind the creation of post cannot be considered by this Court. The posts could be created under sub-clause 6 (13) of the Act. So if in exercise of that power, the managing Board of the University had created post of Accountant to maintain accounts of the students messes that cannot by itself be a ground to doubt the bona fide of respondent No. 1 for abolishing the post. Wisdom of the University to create a post in exercise of its powers under Section 6 (13) of the Act would not fall for our determination in this case. Wisdom of the University to create a post in exercise of its powers under Section 6 (13) of the Act would not fall for our determination in this case. With the domestic affairs of the University this court would be reluctant to interfere unless it is necessary to do so to prevent breach of rules or to prevent miscarriage of justice or to safeguard rights of the petitioner guaranteed under the Constitution. By creation of a post of Accountant to discharge some function which hitherto were discharged by the General Manager (Food Services) does not seem to be an act done in bad faith. We are are unable to draw an inference of bad faith from the resolution dated 9-6-1986 by which a post of Accountant is created nor is it possible for us to draw such an inference on the basis of amended regulation of 1987. If a post is created its function can be prescribed under the regulations. That is all what has been done by respondent No. 1. If some of the functions are similar to those which were discharged by the petitioner as General Manager it cannot be countenanced that abolition of post was unnecessary as is argued by learned counsel for the petitioner. 19. The ground on which this court can interfere with the impugned order is very limited. If the powers are exercised in bad faith or if they are mala fide then the impugned order has to be struck down. Otherwise it is very difficult for this court to interferer with the impugned order. For abolishing the post it is not necessary that the petitioner should have been heard. It is the satisfaction of the employer in respect of the requirement of the post. If the post is not required and if the post is redundant, the employer has the authority to abolish the post but if the abolition is actuated by malice, bad faith or for reasons extraneous to the purpose, this court would intervene. 20. Sub-clause 4 (o) (e) in Chapter 25 of the Statute is based on theory of Pleasure Which is not uncommon in the service statute. Even under Article 310 of the Constitution doctrine of Pleasure is contained which is controlled only by Article 311 of the Constitution. The power to abolish [ the post would result in ceasing the holder of the post to be the employee. Even under Article 310 of the Constitution doctrine of Pleasure is contained which is controlled only by Article 311 of the Constitution. The power to abolish [ the post would result in ceasing the holder of the post to be the employee. Action of abolition of post can be taken but that is always subject to the judicial review of the Court. If a post is abolished it is for the employer to see whether holder of the post should be rehabitated by giving him an alternative employment. The Court has no voice in that matter. Every kind of termination of employment of service would not be brought before the Court unless termination of services is by way of penalty or by way of exercise of colourable power are done in bad faith. Termination of service by abolition of post if done under rules would be termination simplicity. 21. In Shyam Lal v. State of U.P., reported in AIR 1954 SC 369 , the Supreme Court has said as under : "The abolition of post may have the consequence of termination of service of a Government servant. Such termination is not dismissal or removal within the meaning of Article 311 of the Constitution. The opportunity of showing cause against the proposed penalty of dismissal or removal does not therefore arise in the case of abolition of post The abolition of post is an executive policy decision. Whether after abolition of the post, the Government servant who was holding the post would or could be offered any employment under the State would therefore be a matter of policy decision of the Government because the abolition of post does not confer on the person holding the abolished post any right to hold the post. 22. Again in State of Haryana v. Des Raj, reported in AIR 1976 SC page 1199, the Supreme Court has said as under: - "Whether a post should be retained or abolished in essentially a matter for the Government to decide. As long as such decision of the Government is taken in good faith, the same cannot be set aside by the Court. It is not open to the Court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. It is not open to the Court to go behind the wisdom of the decision and substitute its own opinion for that of the Government on the point as to whether a post should or should not be abolished. The decision to abolish the post should, however, as already mentioned, be taken in good faith and be not used as a cloak or pretence to terminate the services of a person holding that post. In case it is found on consideration of the facts of a case that the abolition of the post was only a device to terminate the services of an employee, the abolition of the post would suffer from a serious infirmity and would be liable to be set aside. The termination of a post in good faith and the consequent termination of the services of the incumbent of that post would not attract Article 311." 23. In K. Rajendran and others v. State of Tamil Nadu, reported in AIR 1982 Supreme Court 1107, the Supreme Court has considered the matter in the context of Articles 38 and 43 of the Constitution and has said as under: - "It is no doubt true that Article 38 and Article 43 of the Constitution insist that the State should endeavour to find sufficient work for the people so that they may put their capacity to work into economic use and earn a fairly good living. But these articles do not mean that everybody should be provided with a job in the civil service of the State and if a person is provided with one he should not be asked to leave it even for a just cause. If it were not so, there would be no justification for a small percentage of the population being in Government service and in receipt of regular income and a large majority of them remaining outside with no guaranteed means of living. It would certainly be an ideal state of affairs if work could be found for all the able bodied men and women and everybody is guaranteed the right to participate in the production of national wealth and to enjoy the fruits thereof. But we are today far away from that goal. It would certainly be an ideal state of affairs if work could be found for all the able bodied men and women and everybody is guaranteed the right to participate in the production of national wealth and to enjoy the fruits thereof. But we are today far away from that goal. The question whether a person who ceases to be a Government servant according to law should be rehabilitate by giving an alternative employment is, as the law stands today, a matter of policy on which the Court has no voice." 24. If the termination of services by abolition of post was on the ground of unsuitability or if it oast a stigma on the petitioner then this Court could infer that the action of respondent No. 1 was mis-conceived and malice in law could be attributed to respondent No. 1, but if there is no stigma cast to the petitioner and the post is abolished which is abolition simplicator it cannot be inferred that action was taken in bad faith. If the order of termination of services is result of administrative exigency without any malice, the action will not be vitiated on the ground that the abolition of post was unnecessary. The Administrative exigency which would necessitate abolition of post or retention of post is the matter which would fall for consideration of the employer alone. Judicial review of such a power is limited only to see as to whether employer's action was actuated by bad faith and malice. 25. It was not shown that the action taken by respondent No. 1 was mala fide or actuated by bad faith or it was colourable exercise of power or the action was taken for extraneous reason which has no nexus with the object. Therefore, it is very difficult for this Court to hold that petitioner's termination of services by abolition of his post is unconstitutional or illegal. Principles of natural Justice also have not been violated because before abolition of post it was not necessary for respondent No. 1 to afford an opportunity of being heard to the petitioner. 26. For the aforesaid reasons, we are of the opinion that this writ petition merits dismissal. We, accordingly dismiss the writ petition, However, there will be no order as to costs. The interim order dated 1-12-1986 stands discharged.